Cole v. Young, Civ. A. No. 2296-54.

CourtUnited States District Courts. United States District Court (Columbia)
Writing for the CourtDonald B. MacGuineas, Atty., Department of Justice, Washington, D. C., for defendants
Citation125 F. Supp. 284
PartiesKendrick M. COLE, Plaintiff, v. Philip YOUNG, Chairman, United States Civil Service Commission, et al., Defendants.
Docket NumberCiv. A. No. 2296-54.
Decision Date26 October 1954

125 F. Supp. 284

Kendrick M. COLE, Plaintiff,
v.
Philip YOUNG, Chairman, United States Civil Service Commission, et al., Defendants.

Civ. A. No. 2296-54.

United States District Court District of Columbia.

October 26, 1954.


125 F. Supp. 285

James H. Heller, Washington, D. C., and David I. Shapiro, New York City, for plaintiff.

Donald B. MacGuineas, Atty., Department of Justice, Washington, D. C., for defendants.

HOLTZOFF, District Judge.

The plaintiff in this action challenges the legality of the procedure for the removal of Government employees in the interest of national security.

The plaintiff was a Food and Drug Inspector, employed by the Food and Drug Administration of the Department of Health, Education and Welfare. Pursuant to the applicable statute and Executive Order, which are hereafter referred to in greater detail, after an interview in which he was interrogated at length, he was served with charges to the effect that he established and continued a close association with individuals reliably reported to be Communists, and maintained a continued and sympathetic association with an organization which was included in the Attorney General's list of subversive groups. He was accorded an opportunity to submit an answer, but declined to do so. The proceedings concluded with a termination of his services by the head of the Department, on the ground that his continued employment was not clearly consistent with the interests of national security.

The plaintiff brings this action to secure reinstatement to his position, claiming that the Executive Order, pursuant to which he was removed, was invalid and that the procedure followed in severing his connection with the Government was not in accordance with law. The pertinent facts are not in dispute and are set forth in the pleadings. Both sides moved for judgment on the pleadings, and the case came on for a hearing on these cross-motions.

The basic statute, under which the plaintiff was removed from office, is the Act of August 26, 1950, 64 Stat. 476, 5 U.S.C.A. § 22-1. Its pertinent portions read as follows:

"Notwithstanding the provisions of section 652 of this title, or the provisions of any other law, the Secretary of State; Secretary of Commerce; Attorney General; the Secretary of Defense; the Secretary of the Army; the Secretary of the Navy; the Secretary of the Air Force; the Secretary of the Treasury; Atomic Energy Commission; the Chairman, National Security Resources Board; or the Director, National Advisory Committee for Aeronautics, may, in his absolute discretion and when deemed necessary in the interest of national security, suspend, without pay, any civilian officer or employee of the Department of State (including the Foreign Service of the United States), Department of Commerce, Department of Justice, Department of Defense, Department of the Army, Department of the Navy, Department of the Air Force, Coast Guard, Atomic Energy Commission, National Security Resources Board, or National Advisory Committee for Aeronautics, respectively, or of their several field services: * * *." (Emphasis supplied.)

The statute prescribes the procedure to be followed in notifying the employee of the reasons for his suspension and giving him an opportunity to submit statements and affidavits in opposition within 30 days after such notification. It further provides for a hearing, then for a review of the case by the agency head or some official designated by him, and finally for a written statement of the decision of the agency head, whose determination was to be final. The statute concludes, 5 U.S.C.A. § 22-3, as follows:

"The provisions of sections 22-1 to 22-3 of this title shall apply to such other departments and agencies of the Government as the President may, from time to time, deem necessary in the best interests of national security. * * *"

To summarize succinctly the pertinent provisions of the Act, it empowers

125 F. Supp. 286
the heads of the specified Government departments and agencies in their absolute discretion and when deemed necessary in the interests of national security, to suspend any officer or employee of that department or agency, and then, after completion of the specified procedure, to remove him from office. The President is authorized to extend the statute to such other departments and agencies as he may deem necessary in the best interests of national security

Acting pursuant to this authority, the President on April 27, 1953, issued Executive Order No. 10450, 5 U.S.C.A. § 631 note, which extended the provisions of the Act "to all other departments and agencies of the Government." This direction is preceded by a recital that the President deemed such action necessary in the best interests of national security. An examination of this Executive Order and its comparison with the statute, inescapably lead to the conclusion that the Order is within the orbit of the Act of Congress. The statute authorized the President to extend it to such other departments and agencies as he might from time to time deem necessary in the best interests of national security. On the basis of a finding that he deemed...

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4 practice notes
  • Duncan v. Summerfield, No. 13867.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • December 31, 1957
    ...§§ 22-1, 22-3; reprinted as a footnote, 351 U.S. at page 538, 76 S.Ct. at page 864, in Cole v. Young, infra. 3 Cole v. Young, D.C.D.C., 125 F.Supp. 284; Cole v. Young, 96 U.S.App.D.C. 379, 226 F.2d 4 Counsel for appellant has submitted and the government has not questioned a list of other p......
  • Cole v. Young, No. 442
    • United States
    • United States Supreme Court
    • June 11, 1956
    ...in his former position. The District Court granted the respondents' motion for judgment on the pleadings and dismissed the complaint. 125 F.Supp. 284. The Page 541 Court of Appeals, with one judge dissenting, affirmed. 96 U.S.App.D.C. 379, 226 F.2d 337. Because of the importance of the ques......
  • Leiner v. United States, No. 576-57.
    • United States
    • Court of Federal Claims
    • October 8, 1958
    ...from a nonsensitive position in a government agency. On October 26, 1954, the District Court rendered a decision adverse to Cole (125 F.Supp. 284), which decision was, on July 28, 1955, affirmed by the United States Circuit Court of Appeals for the District of Columbia Circuit, 96 U.S. App.......
  • Cole v. Young, No. 12526.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • July 28, 1955
    ...2 58 Stat. 390 (1944), as amended, 5 U.S. C.A. § 863. 3 64 Stat. 476 (1950), 5 U.S.C.A. § 22-1 et seq. 4 Cole v. Young, D.C., 125 F.Supp. 284 5 64 Stat. 477 (1950), 5 U.S.C.A. § 22-3. 6 Art. II, § 1. cl. 1. 7 93 U.S.App.D.C. 375, 211 F.2d 28 (D.C.Cir.1954). 1 The court found the difference ......
4 cases
  • Cole v. Young, No. 442
    • United States
    • United States Supreme Court
    • June 11, 1956
    ...in his former position. The District Court granted the respondents' motion for judgment on the pleadings and dismissed the complaint. 125 F.Supp. 284. The Page 541 Court of Appeals, with one judge dissenting, affirmed. 96 U.S.App.D.C. 379, 226 F.2d 337. Because of the importance of the ques......
  • Duncan v. Summerfield, No. 13867.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • December 31, 1957
    ...§§ 22-1, 22-3; reprinted as a footnote, 351 U.S. at page 538, 76 S.Ct. at page 864, in Cole v. Young, infra. 3 Cole v. Young, D.C.D.C., 125 F.Supp. 284; Cole v. Young, 96 U.S.App.D.C. 379, 226 F.2d 4 Counsel for appellant has submitted and the government has not questioned a list of other p......
  • Leiner v. United States, No. 576-57.
    • United States
    • Court of Federal Claims
    • October 8, 1958
    ...from a nonsensitive position in a government agency. On October 26, 1954, the District Court rendered a decision adverse to Cole (125 F.Supp. 284), which decision was, on July 28, 1955, affirmed by the United States Circuit Court of Appeals for the District of Columbia Circuit, 96 U.S. App.......
  • Cole v. Young, No. 12526.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • July 28, 1955
    ...2 58 Stat. 390 (1944), as amended, 5 U.S. C.A. § 863. 3 64 Stat. 476 (1950), 5 U.S.C.A. § 22-1 et seq. 4 Cole v. Young, D.C., 125 F.Supp. 284 5 64 Stat. 477 (1950), 5 U.S.C.A. § 22-3. 6 Art. II, § 1. cl. 1. 7 93 U.S.App.D.C. 375, 211 F.2d 28 (D.C.Cir.1954). 1 The court found the difference ......

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